Decision No. 13,871

Appeal of RENEE McNAMARA, on behalf of her son, JEREMY, from action of the Board of Education of the Burnt Hills-Ballston Lake Central School District concerning student discipline.

Decision No. 13,871

(February 13, 1998)

Robert E. Van Vranken, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals respondent's permanent suspension of her son from the Burnt Hills-Ballston Lake Central School District. The appeal must be sustained in part.

During the 1996-1997 school year, Jeremy McNamara was a senior at respondent's high school. Late in the evening of December 31, 1996, or in the early hours of January 1, 1997, Jeremy and three other students entered the high school by breaking a pane of glass in an exterior door. In his knapsack, among other things, Jeremy carried three propane bottles, a claw hammer and a hacksaw, according to his own signed handwritten statement. While inside the school, the four boys were surprised by New York State Police officers and taken into custody. According to a signed statement given by Jeremy several hours later: "We entered the school with the intention of turning off the boilers and doing something to the electrical system." The high school was scheduled to reopen on January 2, 1997.

On January 2 respondent's superintendent issued a notice of hearing charging that Jeremy unlawfully entered the high school with tools "and with the intent to disable and/or destroy the High School building electrical and mechanical systems." The notice further charged that such conduct was insubordinate and disorderly, was in violation of the student handbook and law, and endangered the safety, morals, health or welfare of others. (The notice contained another charge which was subsequently dropped and is not relevant to this appeal.)

On January 7, 1997, a hearing was held, at which the school district and Jeremy were both represented by counsel. On January 10 the hearing officer delivered her report to the superintendent. The hearing officer found that Jeremy had entered the locked building at a time that it was not open to students, and personally aided in breaking the glass to gain entry. Based upon Jeremy's written statement to the State Police, the testimony of a State trooper and others, the hearing officer found that Jeremy had intended to turn off the school boilers and tamper with the electrical system. She further found that the evidence indicated substantial premeditation and planning on Jeremy's part and that Jeremy fully intended to participate with the other students in the disabling or destruction of the building's electrical and mechanical systems, but was prevented from doing so only because they were stopped by the State Police. The hearing officer went on to find that such conduct constituted insubordination and disorderly conduct and that, in addition, it endangered the safety, health, and welfare of others. The hearing officer noted that the materials carried by Jeremy could have inflicted injury on the other students with him or upon the State Police officers. In addition, she noted the real possibility of an electrical fire had Jeremy and the other students been successful. The hearing officer found further that the possession of tools and illegal entry violated the school handbook in addition to Education Law "3214. Her report concluded by recommending that Jeremy be permanently suspended from school, "and that he be barred from entry upon any school district property, for any purpose."

On January 10, 1997, respondent's superintendent issued a letter adopting the findings and recommendations of the hearing officer, and containing the following sentence: "It is my determination that Jeremy Gordon McNamara be and hereby is permanently suspended from instruction at the Burnt Hills-Ballston Lake Central School District and that Jeremy Gordon McNamara be barred from entering upon school district property for any purpose and at any time." On February 26, 1997, the board of education met to review petitioner's appeal of the superintendent's determination. On February 27 the board president issued a written notice that the board unanimously affirmed in all respects the superintendent's determination. This appeal ensued, and on April 7, 1997, I denied petitioner's application for a stay.

Petitioner's main contention is that the penalty in this matter is excessive and not supported by the evidence. It appears to be petitioner's contention that Jeremy was guilty of nothing more than an illegal entry on school property and the breaking of one window. She further argues that, if the school authorities had become aware of the intended illegal entry ahead of time, the school had a duty either to the students or their parents, or both, to prevent the illegal act. Petitioner also questions the district's authority to ban Jeremy from school property permanently, and argues that this would prevent him from voting in elections held at the school and would prevent him from attending all future activities on school property, even if he were to have a child enrolled in the district someday.

Respondent generally denies petitioner's claims, and argues that the evidence before the hearing officer clearly proves guilt, and that the nature of the conduct is so extraordinary that a permanent suspension is justified.

The evidence in the record is certainly sufficient to prove Jeremy's unlawful entry, use of dangerous instrumentalities, and intent to do serious damage to school district property. The observations in the hearing officer's report as to the immediate potential danger to the students themselves and the State Police officers are well taken. If Jeremy and the other students had succeeded, the possibility of an electrical fire or explosion the following day when the building was fully occupied is not at all remote. Given the seriousness of the possible consequences, I find Jeremy's conduct especially grave.

I reject the notion that the penalty is excessive because the only harm done was an "illegal entry on school property and the breaking of one window." It is obvious that the real potential for harm may be taken into consideration in determining an appropriate penalty even though the actual harm done is perhaps minor, especially where intervention by another party is the only factor that prevents the potential harm from occurring. For example, Education Law "3214(3)(d) recognizes that the bringing of a weapon to school justifies a suspension for a period of not less than one calendar year. Because of the great potential harm that can be caused by a weapon, it is not necessary that any actual injury be caused to any person in order to impose the one year suspension. Similarly, Penal Law, Article 110, makes it clear that an attempt to commit a crime is in some cases treated as the same level offense as the actual crime, and in other cases only one degree less. For example, an attempt to commit murder is a class A-2 felony, whereas murder itself is a class A-1 or A-2 felony. It is not necessary that any actual physical harm be caused to the potential victim in order to sustain a charge of attempted murder.

Petitioner further argues that if the school authorities knew of the impending illegal entry, they had a duty to prevent it rather than allow the State Police to apprehend Jeremy and the other boys. This argument was not raised before the hearing officer, and, although petitioner has produced an affidavit that would suggest that school authorities were aware of the potential crime, petitioner has not established that school officials actually had such knowledge. In any event, neither party has produced any legal authority that would tend to establish such a duty on the part of school officials, and I am not aware of any such authority.

It is true, as petitioner alleges, that previous Commissioners' decisions have treated permanent suspension as an extreme penalty that is generally educationally unsound except under extraordinary circumstances (see e.g., Appeal of Nathaniel D., 32 Ed Dept Rep 67; Appeal of Felice, 29 id. 332). In several cases where a permanent suspension was considered by the Commissioner but not upheld, there were factors such as a suggestion that the student might have a handicapping condition (Appeal of Judy F., 34 Ed Dept Rep 81), or that the student was below the age of compulsory education (Appeal of Tietje, 34 id. 567), or that no provision for alternative instruction was made for a student of compulsory education age (Appeal of Nathaniel D., supra).

In Appeal of Sole, 34 Ed Dept Rep 270, a 17 year old student was permanently suspended after a disturbance in the high school cafeteria. It appears that the student was observed throwing two chairs, turning over a large lunch table and throwing two food trays like a "frisbee." While it does not appear from the decision that any student was injured during that incident, the school had experienced repeated "food fights" for at least two years, and at least one injury had occurred. In Sole, the student's anecdotal record indicated prior involvements in food fights, fights, an assault, an act of vandalism and at least one other incident where students were endangered by his conduct. In upholding the permanent suspension, the Commissioner stated:

While I am always reluctant to uphold a permanent suspension of a student because of the deleterious effect it has upon his education, I am mindful of a need to safeguard the well-being of other students. Thus, based upon the record before me, and the fact that a board of education may be held liable for its failure to take appropriate steps to prevent injury from the reasonably foreseeable intentional acts of a student (Mirand v. City of New York, 84 NY2d 44, 614 NYS2d 372), I will not substitute my judgement for that of the board of education in this case.

I consider the actions of Jeremy McNamara and his companions to be most extraordinary circumstances. The record indicates substantial premeditation and preparation, and Jeremy's own written statement clearly indicates an intention to interfere with the operations of the school heating and electrical systems. This behavior had the potential for injury to himself and his companions, injury to the State Police officers, and potentially, in addition to substantial property damage, had the real possibility of causing serious injury to other students the following day or thereafter.

At the time of his permanent suspension, Jeremy was 17 years old, above the age of compulsory education. According to respondent's answer, Jeremy had already enrolled as a student at Schenectady County Community College. In view of these circumstances, I see no reason to set aside the permanent suspension.

However, I must set aside that portion of the penalty which, in essence, bars Jeremy McNamara from respondent's property forever. Pursuant to Education Law "3214, a pupil may be suspended or involuntarily transferred; there is no provision for permanent banishment from school grounds in perpetuity, nor is a disciplinary hearing under this section a proper forum for such a result. Counsel for respondent has cited no statutory or case law authority which would justify such a result.

I have reviewed the parties' remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED ONLY TO THE EXTENT INDICATED.

IT IS ORDERED that that portion of the penalty imposed by respondent barring Jeremy McNamara from entering upon school district property for any purpose and at any time, is annulled.